Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randolph Boyce

Applicant

-and-

Toronto Community Housing Corporation, Mary Richardson and Natalie Patel

Respondents

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: February 5, 2009

Citation: 2009 HRTO 131

Indexed as: Boyce v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS BY

Randolph Boyce, Applicant ) On His Own Behalf

Toronto Community Housing Corporation, ) Ian Faulkner, Mary Richardson, and Natalie Patel, Respondents ) Representative

Ontario Public Service Employees Union, ) Robin Gordon, Intervenor ) Representative

1This Interim Decision addresses various procedural issues that have arisen in this Application, filed on August 20, 2008. The Application alleges that the respondent Toronto Community Housing Corporation (“TCHC”) discriminated in employment against the applicant on the basis of disability, contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant suffered a workplace injury in 2005 while working as a Community Patrol Officer. He alleges that his disability has not been accommodated to the point of undue hardship. The applicant was dismissed from employment for failing to report to work in a dispatcher position which has been offered to him since 2005. The applicant states that as a result of his disability, he cannot travel to the location of the modified work offered by TCHC.

2Whether TCHC’s offer of the dispatcher position is appropriate has also been an issue in the process under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A as amended (the “WSIA”). A Workplace Safety and Insurance Board (“WSIB”) claims adjudicator first ruled that the applicant was fit for the dispatcher work effective June 15, 2005, and suspended his loss of earnings (“LOE”) benefits from that date forward, on the basis the applicant had failed to cooperate in an early and safe return to work. The applicant appealed this decision to an Appeals Resolution Officer (“ARO”), and argued that he was entitled to LOE benefits from June to November of 2005. This appeal was successful. In a decision dated February 8, 2008, the ARO wrote as follows:

With regard for the worker’s injury-related restrictions and the physical demands of travelling to and from work, the evidence strongly suggests the worker was not fit to travel to and from work by known methods of transportation. I find, therefore, that the job offered to the worker in June 2005 was not suitable. Entitlement to LOE benefits beyond June 15, 2005 is in order.

Review of documentation received between June 2005 and November 2005 indicates that while the worker experienced some improvement in his knee condition, he remained unfit for many weight-bearing and stair-climbing activities. Memoranda and correspondence indicate that the worker continued to claim that driving was a problem and repeated his request for a work assignment close to his home. I would suggest that the worker was capable of driving to the worksite not long after June 2005. The knee impairment would, however, affect the worker’s ability use [sic] public transit or park at the Bleeker Street lot indefinitely. The record shows that while both parties acknowledged concerns about walking and stair-climbing involved in reaching the worksite, neither made any effort to confirm the availability of suitable parking at this location.

3In a subsequent memorandum dated April 18, 2008, the Appeals Resolution Officer clarified that the claim for LOE benefits had been expressly limited by the applicant’s representative to the period until November 15, 2005, because of the applicant’s apparently erroneous belief that a car accident had affected his ability to return to work after that point. The ARO determined that “Entitlement to LOE benefits beyond November 15, 2005 will be left to the discretion of operations”.

4The applicant then requested benefits beyond November 15, 2005. In a letter dated May 1, 2008, the Claims Adjudicator made two decisions. He found the applicant was not entitled to LOE benefits after November 15, 2005, on the basis that the modified work offered was within his restrictions. He also found that TCHC’s then-current offer of modified duties was appropriate. In a subsequent letter dated July 23, 2008, the claims adjudicator confirmed his decisions on these matters and the fact of their appeals as follows:

...Through our conversations, I know that you wish to appeal both issues (LOE) benefits beyond November 15, 2005 and suitable modified work as of March 14, 2008); I will consider the objection that you have submitted to the LOE benefits beyond November 15, 2005 to be an objection to both issues.

I have reviewed the medical once again. I find that the modified duties offered in June 2005 were suitable and by November 15, 2005 there were no medical limitations to support you could not travel to and from your worksite, therefore, I am unable to change my decision for benefits beyond November 15, 2005.

I have reviewed the offer of modified work on March 14, 2008 and I am unable to change my decision with regards to Job suitability. Your objection has been received and is being processed.

DEFERRAL

5The applicant initially asked that the Application be deferred, but withdrew this request once he was dismissed from employment (which occurred after the Application was filed). He now opposes deferral. In the response, the respondents’ representative asked that the matter be dismissed pursuant to s. 45.1 of the Code on the basis that the substance of the Application had been appropriately dealt with by the decisions of the WSIB. Following inquiries by the Tribunal about whether the May 2008 decision had been appealed, the respondent’s representative clarified that the respondent was asking that the matter be deferred pending the determination of the WSIB issues.

6There is a dispute between the parties about whether the issues of LOE benefits after November 15, 2005 and suitable modified work were in fact appealed. It appears that they were, based upon the content of the July 23, 2008 letter cited above, and I will therefore assume for the purposes of this decision that the WSIB appeal process with regard to these issues is ongoing.

7In Bhagdasserians v. 674460 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-20:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

8In Cui v. MSM, 2008 HRTO 449, the Tribunal deferred its proceedings pending an upcoming hearing before the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). As in this case, the applicant in Cui had not attended work following an offer of modified work that he believed was inconsistent with the duty to accommodate and was dismissed. The WSIA proceedings involved his entitlement to LOE benefits in light of the offer made by the employer. The Tribunal held as follows:

The suitability of the modified work offered by the employer, informed by a statutory obligation to accommodate to the point of undue hardship, is a central issue in both proceedings. The substance of the legal issues is therefore similar or the same (see Berisa v. Toronto (City), 2008 HRTO 246 at paras. 38-40). Moreover, the WSIB proceedings are well underway, and the WSIAT appeal of the ARO decision is scheduled in just over two months. If the WSIAT upholds the applicant’s position, he will be entitled to LOE benefits, which may affect the damages to be awarded by the Tribunal if the Application is allowed. All of these factors support deferral.

9Although the overlap in the legal issues is similar to Cui, I find that deferral should not be ordered in this case because of the different status of the WSIA proceedings. The applicant’s WSIB matter is not before the WSIAT, an independent statutory tribunal. Rather, it is at the initial stages of an internal WSIB appeal, which must be completed before an appeal may be made to WSIAT. Unlike in Cui, where a final hearing and decision under the WSIA were imminent, the appeal process regarding the determinations about the post-November 2005 offers of modified work is just beginning.

10The WSIA appeal proceedings cannot deal with all aspects of this Application, unlike the situation in Plummer v. Workplace Safety and Insurance Board, 2009 HRTO 65. In that regard, this situation is different from labour arbitration, where the Tribunal will defer even where a grievance is at an early stage. There cannot, for example, be consideration of Code remedies nor a determination of whether the dismissal in August 2008 violated the Code. Although the concurrent proceedings raise concerns about possible conflicting determinations of fact and law, as recognized in Cui, in my view these are outweighed by the importance of a timely resolution of the Code issues. As the Tribunal stated in Bhagdasserians, supra at para. 24:

Section 40 of the Code requires the Tribunal to adopt procedures and practices that offer, in the Tribunal’s opinion, the best opportunity for a fair, just and expeditious resolution of the merits of an application. So while it may be preferable for two proceedings to unfold sequentially rather than concurrently in order to lessen the possibility of conflicting findings of fact, there is no obvious reason in this case why the Tribunal’s processes should be deferred for an undetermined period of time given the Tribunal’s goal of ensuring the fair, just and expeditious resolution of the merits of matters before it.

11The respondent’s request for deferral is denied.

INTERVENTION REQuest

12The Ontario Public Service Employees Union (“OPSEU”) represents employees in the bargaining unit in which Mr. Boyce was employed. It asks to intervene to address procedural or remedial issues that may affect the operation of the collective agreement or its members’ rights under that agreement. The other parties made no submissions on this request.

13A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it. OPSEU is granted leave to intervene on the terms requested.

PRODUCTION REQUEST

14Through a Request for Order During Proceedings filed December 9, 2008, the applicant requested that the Tribunal order production of certain documents by the respondent. The respondent opposes this request on the basis that the applicant has been provided with the documents on numerous occasions during WSIB proceedings, and some do not exist.

15The applicant’s request is premature. Under Rule 16 of the Tribunal’s Rules of Procedure, each party must deliver to the other a list and copy of all arguably relevant documents in its possession within 21 days after the Tribunal sends a Confirmation of Hearing to the parties. No Confirmation of Hearing has been issued in this case and there are no special circumstances that justify a production order at this stage of the process. The applicant may file a new request if the documents are not provided in accordance with Rule 16. I note, parenthetically, that the Rules do not exempt a party from disclosing documents it believes another party has already received.

REQUEST TO AMEND

16Finally, on December 19, 2008, the applicant filed a request to amend the Application to include new facts that arose after the Application was filed and the ground of reprisal, based on those facts. The respondent filed no response to this request and accordingly, the request is unopposed. The amendments are appropriate and the request is granted.

ORDER

17The Tribunal orders as follows:

1. The respondents’ request to defer is denied.

2. OPSEU is granted leave to intervene on the terms requested.

3. The request for production is dismissed.

4. The applicant is granted leave to amend the Application as requested.

18I am not seized of this matter.